Registration test decision

Application name Warrwa People

Name of applicant Harry Lennard, Joseph Davey, Stephen Comeagain, Nathan Lenard

State/territory/region Kimberley, Western Australia

NNTT file no. WC10/12

Federal Court of Australia file no. WAD262/2010

Date application made 16 September 2010

Name of delegate Susan Walsh

I have considered this claim for registration against each of the conditions contained in ss. 190B and 190C of the Native Title Act 1993 (Cwlth). For the reasons attached, I am satisfied that each of the conditions contained in ss. 190B and 190C are met. I accept this claim for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth).

Date of decision: 13 October 2010

Susan Walsh Delegate of the Native Title Registrar pursuant to sections 190, 190A, 190B, 190C, 190D of the Native Title Act 1993 (Cwlth) under an instrument of delegation dated 2 August 2010 and made pursuant to s. 99 of the Act.

Table of contents

Introduction ...... 3 Overview ...... 3 Procedural fairness ...... 3 Information considered ...... 3 Decision ...... 4 Procedural and other conditions: 190C ...... 4 190C(2) Information etc. required by ss. 61 and 62 ...... 4 190C(3) No common claimants in previous overlapping applications ...... 8 190C(4) Authorisation/certification ...... 8 Merit conditions: 190B ...... 10 190B(2) Identification of area subject to native title ...... 10 190B(3) Identification of the native title claim group ...... 11 190B(4) Native title rights and interests identifiable ...... 13 190B(5) Factual basis for claimed native title ...... 14 190B(6) Prima facie case ...... 24 190B(7) Traditional physical connection ...... 29 190B(8) No failure to comply with s. 61A ...... 29 190B(9) No extinguishment etc. of claimed native title ...... 30

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 2 Decided: 13 October 2010 Introduction This document sets out my reasons for the decision, as the delegate for the Native Title Registrar (the Registrar), to accept the Warrwa application (the application) for registration pursuant to s. 190A of the Act. Note: All references in these reasons to legislative sections refer to the Native Title Act 1993 (Cwlth)(the Act), as in force on the day this decision is made, unless otherwise specified.

Overview The application was filed in the Federal Court (the Court) on 16 September 2010 and the Court provided a copy to the Registrar on 17 September 2010 pursuant to s. 63 of the Act, thereby triggering the Registrar’s duty to consider the claim made in the application under s. 190A of the Act. The application falls within the representative body region covered by the Kimberley Land Council, the principal legal officer of which is identified in the Form 1 as the applicant's legal representative. The application area is entirely covered by a s. 29 notice with a notification day of 16 June 2010 (tenement ID 2/91-2L) and the application appears to have been made in response to that notice. Section 190A(2) requires that I use best endeavours to make the registration test decision within four months of the notification day. As this date falls on a Saturday, I have made my decision on the preceding business day, Friday 15 October 2010.

Procedural fairness The Tribunal provided a copy of the application and other documents received from the Federal Court to the Western Australian Government pursuant to s. 66(2), on 17 September 2010. On 24 September 2010, the Tribunal informed the government that the application would be considered for registration by 15 October 2010 due to the aforementioned s. 29 notice and offered the government an opportunity to make a submission by 6 October 2010. This is in accordance with the decision in Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591 at [21] to [38] that a state government is entitled to this kind of procedural fairness. The government has not made any submissions.

Information considered Subsection 190A(3) directs me to have regard to certain information when testing an application for registration; there is certain information that I must have regard to, but I may have regard to other information, as I consider appropriate. I have considered the information in the application (including accompanying documents filed in the Court). I have also considered the documents contained in the Tribunal’s WC10/12 case management/delegate file 2010/02525 as at the date of this decision. I have followed Court authority and have only considered the terms of the application itself in relation to the registration test conditions in s. 190C(2) and ss. 190B(2), (3) and (4): see Northern Territory v Doepel (2003) 203 ALR 385; [2003] FCA 1384 (Doepel) at [16].

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 3 Decided: 13 October 2010 I have not considered any information that may have been provided to the Tribunal in the course of the Tribunal:  providing assistance under ss. 24BF, 24CF, 24CI, 24DG, 24DJ, 31, 44B, 44F, 86F or 203BK, without the prior written consent of the person who provided the Tribunal with that information, either in relation to this claimant application or any other claimant application or any other type of application, as required of me under the Act.  undertaking its mediation functions in relation to this or any other claimant application. I take this approach because matters disclosed in mediation are ‘without prejudice’ and also because mediation is private as between the parties and is also generally confidential: see ss. 94D(4) 94K and 94L of the Act.

Decision As this is a new application and has not been amended, my consideration is governed by ss. 190A(6) and (6B), the combined effect of which is that I may only accept the claim for registration if it satisfies all of the conditions in ss. 190B and 190C of the Act. Section 190B sets out conditions that test particular merits of the claim detailed in the application, as required by ss. 61 and 62. Section 190C(2) requires that I must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by ss. 61 and 62. In my reasons below I consider the s. 190C(2) requirements first, in order to assess whether the application contains the requisite information and documents before turning to the remaining parts of ss. 190C(3) and (4) and to questions regarding the merit of that material for the purposes of s. 190B. In view of my decision that the application satisfies all of the conditions in ss. 190B and 190C, the application must be accepted for registration. Procedural and other conditions: 190C 190C(2) Information etc. required by ss. 61 and 62 The Registrar/delegate must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. The application satisfies the condition of s. 190C(2), because it does contain all of the details and other information and documents required by ss. 61 and 62, as set out in the reasons below. In reaching my decision, I understand that the condition in s. 190C(2) is of a procedural kind and requires me to be satisfied that the application contains the information and details, and is accompanied by the documents, prescribed by ss. 61 and 62. In my view, s. 190C(2) does not require me to undertake any merit or qualitative assessment of the material for the purposes of s. 190C(2)— Doepel at [16] and [35] to [39]. My consideration of the various parts of ss. 61 and 62 which relevantly prescribe that the application must contain certain details and other information or that the application must be accompanied by any affidavit or other document, is detailed below:

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 4 Decided: 13 October 2010 Native title claim group: s. 61(1) The application must be made by a person or persons authorised by all of the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group. The application contains all details and other information required by s. 61(1). Section 190C(2) is framed in a way that ‘directs attention to the contents of the application and the supporting affidavits’. Thus, I have confined my assessment of this requirement to the details and information contained in the application itself. I am not required to look beyond the application nor undertake a merit assessment to determine if I am satisfied whether ‘in reality’ the native title claim group described is the correct native title claim group—Doepel at [35] to [37] and [39]. That said, in seeking to verify that an application contains all the details and information required by ss. 61 and 62, I do ensure that a claim ‘on its face, is brought on behalf of all members of the native title claim group’—Doepel at [35] to [37]. In light of the decision in Doepel, I have confined my consideration to the information contained in the application itself about the identity of the native title claim group. This is found in Schedule A which identifies that the native title claim group are the descendants of the 13 apical ancestors named in that schedule. The text of Schedule A is reprodcued in my reasons below at s. 190B(3). There is nothing on the face of the application before me to indicate a problem of the kind discussed by Mansfield J in Doepel. I have thus formed the view that the application contains the details required by s. 190C(2) in relation to s. 61(1). Name and address for service: s. 61(3) The application must state the name and address for service of the person who is, or persons who are, the applicant. The application contains all details and other information required by s. 61(3). These details are found on pp. 2 and 13 of the Form 1 respectively. Native title claim group named/described: s. 61(4) A native title determination application that persons in a native title claim group authorise the applicant to make must: (a) name the persons in the native title claim group, or (b) otherwise describe the persons in the native title claim group sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. The application contains all details and other information required by s. 61(4). I refer to my reasons above in relation to s. 61(1). It follows in my view that the application contains the details required by the related provisions of s. 61(4). These details are found in Schedule A. Whether or not I am satisfied that the description is sufficiently clear, so that it can be ascertained whether any particular person is a person in the native title claim group, is the task when considering the relevant merit condition of the registration test in subsection 190B(3)— Gudjala People # 2 v Native Title Registrar [2007] FCA 1167(Gudjala 2007) at [31] and [32]. Affidavits in prescribed form: s. 62(1)(a) The application must be accompanied by an affidavit sworn by the applicant that:

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 5 Decided: 13 October 2010 (i) the applicant believes the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application, and (ii) the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register, and (iii) the applicant believes all of the statements made in the application are true, and (iv) the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it, and (v) setting out details of the process of decision–making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it. The application is accompanied by the affidavit/s required by s. 62(1)(a). Each of the four persons comprising the applicant has made an affidavit that was filed with the original application on 16 September 2010 addressing the matters required by subparagraphs 62(1)(a)(i) to (v). These are the affidavits found in Attachment R of the application. Application contains details required by s. 62(2): s. 62(1)(b) The application must contain the details specified in s. 62(2). The application contains all details and other information required by s. 62(1)(b), namely the details specified in ss. 62(2)(a) to (h), as identified in the reasons that now follow. Information about the boundaries of the area: s. 62(2)(a) The application must contain information, whether by physical description or otherwise, that enables the following boundaries to be identified: (i) the area covered by the application, and (ii) any areas within those boundaries that are not covered by the application. The application contains all details and other information required by s. 62(2)(a). A written description of the areas covered and the areas not covered by the application is found in Attachment B and Schedule B respectively. Map of external boundaries of the area: s. 62(2)(b) The application must contain a map showing the boundaries of the area mentioned in s. 62(2)(a)(i). The application contains all details and other information required by s. 62(2)(b). A map showing the boundaries of the area covered by the application is provided in Attachment C of the application. Searches: s. 62(2)(c) The application must contain the details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land and waters in the area covered by the application. The application contains all details and other information required by s. 62(2)(c). The information in Schedule D is that no searches of the relevant kind have been carried out. Description of native title rights and interests: s. 62(2)(d) The application must contain a description of native title rights and interests claimed in relation to particular lands and waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 6 Decided: 13 October 2010 interests are all native title rights and interests that may exist, or that have not been extinguished, at law. The application contains all details and other information required by. 62(2)(d). Schedule E provides a description of the claimed native title rights and interests and it does not merely consist of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law. General description of factual basis: s. 62(2)(e) The application must contain a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist, and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area, and (ii) there exist traditional laws and customs that give rise to the claimed native title, and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. The application contains all details and other information required by s. 62(2)(e). These details are found in Schedules F, G and M and also in Attachments F1, F2 and F3 of the application. Activities: s. 62(2)(f) If the native title claim group currently carries out any activities in relation to the area claimed, the application must contain details of those activities. The application contains all details and other information required by s. 62(2)(f). These details are found in schedule G of the application Other applications: s. 62(2)(g) The application must contain details of any other applications to the High Court, Federal Court or a recognised state/territory body of which the applicant is aware, that have been made in relation to the whole or part of the area covered by the application and that seek a determination of native title or of compensation in relation to native title. The application contains all details and other information required by s. 62(2)(g). The applicant states in Schedule H that it is unaware of any overlapping applications. Section 24MD(6B)(c) notices: s. 62(2)(ga) The application must contain details of any notifications under s. 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or part of the area covered by the application. The application contains all details and other information required by s. 62(2)(g). The applicant states in Schedule HA that it is unaware of any such notifications. Section 29 notices: s. 62(2)(h) The application must contain details of any notices given under s. 29 (or under a corresponding provision of a law of a state or territory) of which the applicant is aware that relate to the whole or a part of the area covered by the application. The application contains all details and other information required by s. 62(2)(h). The details are found in Attachment I.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 7 Decided: 13 October 2010 190C(3) No common claimants in previous overlapping applications The Registrar/delegate must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if: (a) the previous application covered the whole or part of the area covered by the current application, and (b) the previous application was on the Register of Native Title Claims when the current application was made, and (c) the entry was made, or not removed, as a result of the previous application being considered for registration under s. 190A. The application satisfies the condition of s. 190C(3). There are no applications that cover the area of the current application and as such no requirement to consider the issue of common members (refer Geospatial report dated 28 September 2010). 190C(4) Authorisation/certification Under s. 190C(4) the Registrar/delegate must be satisfied that either: (a) the application has been certified under Part 11 by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part, or (b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Note: The word authorise is defined in section 251B.

The application satisfies the condition of s. 190C(4). For the reasons that follow, I am satisfied that the application has been certified under Part 11 by the only representative body that could certify the application, namely, Kimberley Land Council (KLC). Attachment R of the application contains the signed certification of the application by the KLC dated 16 September 2010. The document is signed by [name deleted], who is identified as an executive director of the KLC. I understand that KLC is a representative body that is recognised under s. 203AD and thus has the power under the Act to certify native title determination applications. I note also that the application falls entirely inside the KLC representative body region and that there are no other s. 203AD recognised bodies or s. 203FE funded bodies for the application area (refer Geospatial report dated 28 September 2010). The KLC is thus the only representative body that could certify the application under Part 11. For the certification to satisfy the requirements of s. 190C(4)(a) the certification by KLC must comply with the provisions of s. 203BE(4)(a) to (c). I am satisfied that the certification in Attachment R does so comply, for the reasons that follow.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 8 Decided: 13 October 2010 Section 203BE(4)(a) It is my view that the certification complies with s. 203BE(4)(a) as it makes the statements required by that section—KLC states its opinion that all persons in the native title claim group have authorised the applicant to make the application and deal with all matters in relation to it and that all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group. Section 203BE(4)(b) It is my view that the certification complies with to s. 203BE(4)(b) which requires it to briefly set out why the KLC holds these opinions. The certification briefly sets out the body’s reasons for holding the relevant opinion under the headings ‘Authorisation’ and ‘Identification of all persons within the native title claim group’. These include details of an authorisation meeting on 15 September 2010 attended by KLC staff where the applicant was authorised by the Warrwa native title claim group and also a brief summary of the efforts by the KLC over a number of years, including anthropological research, genealogical research and community consultations with the Warrwa native title claim group to identify the persons holding native title. The certification states that the authorisation meeting was attended by Warrwa people from around Western Australia, who agreed at the meeting that they were sufficiently representative of the Warrwa claim group to make decisions on behalf of Warrwa people. The certification states that the KLC notified numerous indigenous organisations about the meeting. In my view s. 190C(4)(a) does not require me to ‘look behind’ these reasons or to question the merits of the representative body’s certification— Doepel at [78], [80] and [81] and Wakaman People 2 v Native Title Registrar and Authorised Delegate (2006) 155 FCR 107; [2006] FCA 1198 at [31] and [32]. Section 203BE(4)(c) Section 203BE(4)(c) requires the KLC to, ‘where applicable, briefly set out what the representative body has done to meet the requirements of s. 203BE(3)’ which in turn requires the KLC it to make all reasonable efforts to reach agreements between any overlapping claimant groups and to minimise the number of overlapping applications (including proposed applications) of which the KLC is aware. Section 203BE(3) states that a failure to make these efforts does not invalidate any certification of the application by the representative body. The certification does not make any statement about what the representative body has done to meet the requirements of s. 203BE(3). I note that there are no overlapping applications filed in the Federal Court and I have no knowledge of any other proposed applications which may affect the area of the Warrwa application. It may therefore be the case that there are no competing native title claims in the area of this application of which the representative body is aware and thus no need to address what has been done about this. In this regard I note that the certification does contain statements indicating a view held by the KLC that, as a result of the research it has undertaken, the Warrwa native title claim group are the only potential native title holders in the area of this application. However it is my view in any event that a certification may comply with the requirements of s. 203BE(4) notwithstanding that it does not set out what the representative body has done to meet

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 9 Decided: 13 October 2010 the requirements of s. 203BE(3). In this regard I note that s. 203BE(3) provides that a failure by the representative body under that provision does not invalidate any certification of the application by the representative body. Having regard to the provisions of s. 203BE as a whole, it follows in my view that the omission of information in a certification relating to the efforts under s. 203BE(3) similarly does not invalidate the certification under s. 203BE(4). For these reasons, I am of the view that the certification complies with the requirements of s. 203BE(4), notwithstanding that it does not address what has been done in relation to the requirements of s. 203BE(3). Summary of decision

It follows that I am satisfied that the application has been certified pursuant to Part 11 because the certification by KLC complies with the relevant provisions of Part 11 at s. 203BE(4). Merit conditions: 190B 190B(2) Identification of area subject to native title The Registrar must be satisfied that the information and map contained in the application as required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. The application satisfies the condition of s. 190B(2). Section 190B(2) requires that the information in the application describing the area is sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters. The information required to be contained in the application is identified in ss. 62(2)(a) and (b), namely: (a) information, whether by physical description or otherwise, that enables the boundaries of: (i) the area covered by the application ; and (ii) any areas within those boundaries that are not covered by the application to be identified; (b) a map showing the external boundary of the application area. The application contains a written description of the internal and external boundaries in Schedule B and Attachment B respectively. A map showing the external boundary is found in Attachment C of the application. The written description in Attachment B identifies that the application area is that covered by an application for petroleum production licencse 2/91-2. The description provides relevant geographic coordinate positions for each corner of the boundary. This can be verified against the map in Attachment C, which depicts the application area as a square area and also contains a coordinate grid. The map is a colour map which clearly shows the area covered as a bold blue outline. The map also contains details of the underlying tenure, with pastoral boundaries, roads and rivers clearly shown against the application area. The map contains a legend for the underlying cadastre, scale bar, and a locality map. Finally, the map contains notes relating to the source, currency and datum used to prepare it. The map was prepared by Landgate of the Western Australian Government. In an assessment dated 28 September 2010, the Tribunal’s

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 10 Decided: 13 October 2010 Geospatial Services expresses the opinion that the description and map are consistent and identify the application area with reasonable certainty. Having regard to the comprehensive identification of the external boundary in Attachment B and the clarity of the mapping of the application area in Attachment C, I am satisfied that the external boundaries of the application area have been described such that the location of it on the earth’s surface can be identified with reasonable certainty. A written description of the areas within the external boundary that are not covered by the application (i.e. the internal boundary) is found in Schedule B. This is a generic description that excludes from the application any areas subject to a number of acts defined in the Act and in Western Australian legislation. It also excludes land covered by acts described in s. 23B of the Act. It also states that the application does not include areas where native title has otherwise been extinguished. A generic or class formula to describe the internal boundaries of an application is acceptable if the applicant has only a limited state of knowledge about any particular areas that would fall within the generic description provided: see Daniels & Ors v State of Western Australia [1999] FCA 686. There is nothing in the information before me to the effect that the applicant is in possession of a tenure history or other information such that a more comprehensive description of these areas would be required to meet the requirements of the section. The applicant expressly states in Schedule D that it has not made any searches of non-native title interests. In these circumstances, I find that the written description of the internal boundaries is acceptable as it offers an objective mechanism to identify which areas fall within the categories described. This may require considerable research of tenure data held by the particular custodian of that data, but nevertheless, it is reasonable to expect that the task can be done on the basis of the information in Schedule B. For these reasons, I am satisfied that the information and map in the application required by ss. 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether the native title rights and interests are claimed in relation to the particular areas of land or waters, and the requirements of s. 190B(2) are therefore met. 190B(3) Identification of the native title claim group The Registrar must be satisfied that: (a) the persons in the native title claim group are named in the application, or (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group. The application satisfies the condition of s. 190B(3). Schedule A of the application contains the following description of the persons in the native title claim group: 1. The native title claim group consists of people known as the Warrwa people, being those Aboriginal people whose traditional land and waters are situated generally in the district of Derby in the State of Western Australia.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 11 Decided: 13 October 2010 2. The individuals who comprise the Warrwa people’s native title claim group are the descendants of the following apical ancestors, including those people adopted in accordance with Warrwa traditional law and custom, see below. [name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted][name deleted]

A child is adopted in accordance with Warrwa traditional law and custom if they are ‘grown up’ by a person who is or was a descendant of one of the Apical ancestors named above. Under Warrwa traditional law and custom that child must have been under 2 years old when they started being ‘grown up’. The description of the native title claim group uses an apical ancestor model. The descendants of these ancestors include adopted persons and how this occurs is explained at the end of the description. As the application does not name the persons in the native title claim group, it is therefore necessary to consider the application against the requirements in subparagraph 190B(3)(b). At [37] of Doepel, Mansfield J stated that the focus of s. 190B(3) is not ‘upon the correctness of the description of the native title claim group, but upon its adequacy so that the members of [sic] any particular person in the identified native title claim group can be ascertained’. A description that necessitates a further factual inquiry to ascertain whether a person is in the group may still be sufficient for the purposes of s. 190B(3): State of Western Australia v Native Title Registrar (1999) 95 FCR 93; [1999] FCA 1591(Western Australia v Native Title Registrar) at [64]. The usage of an apical ancestor model does require a further factual inquiry to establish if any particular person is in the native title claim group. However, it is my view that the description is clearly within the bounds of that considered by Carr J in Western Australia v Native Title Registrar. I am provided with a starting point, that is, the names of the apical ancestors, and from there it is possible, with a further factual inquiry, to work out who is descended (including adopted descent) from such persons. The description provides a clear description of how adoption works for the native title claim group. It follows that I am satisfied that the description of the native title claim group is sufficiently clear so that it can be ascertained whether any particular person is in the group.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 12 Decided: 13 October 2010 190B(4) Native title rights and interests identifiable The Registrar must be satisfied that the description contained in the application as required by s. 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified. The application satisfies the condition of s. 190B(4). My view is that for a description to meet the requirements of this section, it must describe what is claimed in a clear and easily understood manner— Doepel at [91] to [92], [95], [98] to [101] and [123]. Any assessment of whether the rights can be prima facie established as ‘native title rights and interests’, as that phrase is defined in s. 223, will be discussed in relation to the requirement in s. 190B(6). Schedule E contains the following description of the claimed native title rights and interests: The native title rights and interests claimed are as follows: 1. Over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s238, ss47, 47A or 47B apply), the Warrwa People claim the right to possess, occupy, use and enjoy the lands and waters of the application area as against the whole world. 2. Over areas where a claim to exclusive possession cannot be recognised, the Warrwa People claim the following rights and interests: (a) the right to access the application area; (b) the right to travel across the application area; (c) the right to camp on the application area; (d) the right to erect shelters on the application area; (e) the right to live on the application area; (f) the right to move about on the application area; (g) the right to hold meetings on the application area; (h) the right to hunt on the application area; (i) the right to fish on the application area; (j) the right to take fauna from the application area; (k) the right to use and maintain the natural water resources of the application area including the beds and banks of watercourses; (l) the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs; (m) the right to use the application area for social, religious, cultural and spiritual customary and/or traditional purposes; (n) the right to conduct ceremony on the application area; (o) the right to participate in cultural activities on the application area; (p) the right to maintain places of importance under traditional laws, customs and practices in the application area; (q) the right to protect places of importance under traditional laws, customs and practices in the application area; (r) the right to conduct burials on the application area; (s) the right to speak for and make non-exclusive decisions about the application area; (t) the right to cultivate and harvest native flora according to traditional laws and customs; (u) the right to cook and light fires for that purpose, on the application area; (v) the right to light fires for domestic purposes but not for the clearance of vegetation; (w) the right to uphold, regulate, monitor and enforce customary law;

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 13 Decided: 13 October 2010 (x) the right to maintain and transmit cultural heritage of the application area; (y) the right to maintain and transmit cultural knowledge of the application area; (z) the right to regulate and resolve disputes among the native title holders of the application area.

3. The native title rights and interests are subject to: (a) The valid laws of the State of Western Australia and the Commonwealth of Australia; and (b) The rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State. (c) the traditional laws and customs of the native title group. I find the description of the rights and interests to be clear and understandable and I am therefore satisfied that the description is sufficient to allow the native title rights and interests claimed to be readily identified. 190B(5) Factual basis for claimed native title The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area, and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interest, and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. The application satisfies the condition of s. 190B(5). Mansfield J in Doepel characterised the Registrar’s task under s. 190B(5) as follows: Section 190B(5) is carefully expressed. It requires the Registrar to consider whether the `factual basis on which it is asserted' that the claimed native title rights and interests exist `is sufficient to support the assertion'. That requires the Registrar to address the quality of the asserted factual basis for those claimed rights and interests; but only in the sense of ensuring that, if they are true, they can support the existence of those claimed rights and interests. In other words, the Registrar is required to determine whether the asserted facts can support the claimed conclusions. The role is not to test whether the asserted facts will or may be proved at the hearing, or to assess the strength of the evidence which may ultimately be adduced to establish the asserted facts—at [17]. This assessment of the task was approved in Gudjala People #2 v Native Title Registrar (2008) 171 FCR 317; [2008] FCAFC 157 (French, Moore and Lindgren JJ) (Gudjala FC) at [82] and [83], an appeal from the decision by Dowsett J in Gudjala 2007. The Full Court in Gudjala FC made the following comments in relation to what is required under s. 190B(5): . . . the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62, might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B. This suggests that the quality and nature of the information necessary to satisfy the Registrar will be of the same general quality and nature as

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 14 Decided: 13 October 2010 the information required to be included in the application and accompanying affidavit—at [90]. The Full Court also discussed the nature and quality of the information required by s. 62(2)(e), which is worded in nearly identical terms to s. 190B(5): The fact that the detail specified by s 62(2)(e) is described as "a general description of the factual basis" is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim (emphasis added)—at [92]. The Full Court indicated at [93] that it would be wrong for the Registrar to approach the material provided in relation to the factual basis ‘on the basis that it should be evaluated as if it was evidence furnished in support of the claim’. The Federal Court remitted the application for reconsideration according to law, and this is the subject of a further decision by Dowsett J in Gudjala People #2 v Native Title Registrar [2009] FCA 1572 (Gudjala 2009). In Gudjala 2009 Dowsett J made the point that the applicant must provide more than mere restatements of the claim, explained in the following passage: In assessing the adequacy of a general description of the factual basis of the claim, one must be careful not to treat, as a description of that factual basis, a statement which is really only an alternative way of expressing the claim or some part thereof. In my view it would not be sufficient for an applicant to assert that the claim group’s relevant laws and customs are traditional because they are derived from the laws and customs of a pre-sovereignty society, from which the claim group also claims to be descended, without any factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters. Such an assertion would merely restate the claim. There must be at least an outline of the facts of the case—at [29]. In my view the decisions of Dowsett J in Gudjala 2007 and Gudjala 2009 provide assistance in relation to what a sufficient factual basis must address for each of the three particular assertions in s. 190B(5). Gudjala FC did not criticise generally the approach that Dowsett J took in relation to these elements in Gudjala 2007, including His Honour’s assessment of what was required to support each of the three assertions at s. 190B(5). Dowsett J, in my view, adopted an analogous approach in Gudjala 2009 to that considered by, and not criticised by, the Full Court. I propose to consider the applicant’s factual basis materials against each of the three particular assertions in s. 190B(5). If I am satisfied that a sufficient factual basis is provided for the these, then it follows that I can be satisfied overall that the requirements of s. 190B(5) are met— Doepel at [130] and [132]. Section 190B(5)(a)—that the native title claim group have, and the predecessors of those persons had, an association with the area

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 15 Decided: 13 October 2010 The applicant’s factual basis is found entirely within the application that has been filed in the Federal Court. The relevant information is to this effect:  Schedule A identifies that the native title claim group consists of people known as the Warrwa people being those Aboriginal people whose traditional lands and waters lie in the district of Derby within the state of Western Australia.  The native title claim group are the descendants of 13 apical ancestors named in Schedule A and includes persons adopted under Warrwa traditional law and custom, which entails a child, under the age of two, being ‘grown up’ by a descendant of one of the apical ancestors.  The application area covers the area of a mining tenement and is thus a ‘polygon claim’ in that it falls within the asserted lands and waters of the Warrwa people, but does not cover the entirety of that territory. I can see from the locality map depicted in Attachment C that the application area lies to the east of and in the vicinity of Derby, within Meda station. I see also that the application area is located within the western region of the Kimberley to the south of King Sound and Stokes Bay.  Schedule E identifies that the claimed native title is the exclusive right of possession, occupation, use and enjoyment where possible and a number of non-exclusive rights relating to accessing and using the application area for traditional and customary purposes.  Schedule F states that the association of the Warrwa people with the application area was recorded from the 17th century when William Dampier documented sighting and interaction with Aboriginal people around the application area. Schedule F also states that subsequent explorers recorded sightings and interaction with Indigenous people around the claim area.  Attachment F1 is identified as the ‘Warrwa Anthropological Report’ and provides further information in relation to this assertion. It identifies that Derby was established as a town in 1883, although by this time, sheep stations existed over most of the lowlands of the West Kimberley. By 1886, after the discovery of gold at Halls Creek, there were nearly 2000 non- Aboriginal people in the Kimberley. I note that sovereignty for Western Australia was 1829; however the information in Attachment F1 indicates that the region was settled by Europeans by the 1880s.  Attachment F1 refers to the 1886 report of Bishop Matthew Gibney, ‘The Mission of the Trappists to the aborigines of the West Kimberleys’ (Gibney). Gibney reported that the Stokes Bay tribe numbered about 30 or 40, but the author of the anthropological report in attachment F1 surmises that the persons observed in Gibney were not the totality of any such tribe, but rather a group of some kind observed to be camping together. The report states that the Stokes Bay tribe was probably the group later referred to by Tindale as ‘Big Warrwa’, whose country was said to be between Derby and Mena.  Attachment F1 states that settlement seriously impacted the Aboriginal population. Elkin is noted to have commented in the early 1930s that the traditional groups in this region, including the Waruwa (a variant spelling of Warrwa) are ‘now represented by only a few individuals’.  Attachment F1 discusses the ethnographic literature, including Elkin, Capell (1940), Tindale (1974), McGregor, Stokes (1982), Gay (1942), Kolig and Bates. The report examines the references to the Derby region in these works and also to the Warrwa as an identity for a land-holding group. The author concludes that these accounts all place Warrwa tribal and linguistic territory in the southern area of King Sound and the adjacent mainland, with some variations. The report in Attachment F1 concludes on this topic that:

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 16 Decided: 13 October 2010 The overall ethnographic picture of Warrwa traditional lands is that they are located on the south-western side of King Sound stretching around to the eastern side of the Sound to Stokes Bay and then extending inland over Meda Station. Some reports locate Warrwa territory as reaching further inland over Kimberley Downs.1

 Attachment F1 discusses the mapping of Warrwa territory by Bates, which indicated that their country lay further along the western coast of King Sound and also Elkin’s unpublished map, which put them in the vicinity of the western side of King Sound, near the Fraser River. This is different to that shown in a map by Gay depicting the Waruwa (a variant spelling of Warrwa) east of Derby. It is surmised that this accords with Capell’s view of Warrwa territory, discussed in a 1952 paper titled ‘Notes on the Njigina and Warwa Tribes’, as being located on all of the east coast of the Sound and the present site of Derby. The author makes the point that Capell’s understanding of Warrwa territory was later disputed as being too limited, referring to Kolig who was of the view that the original inhabitants of the area inland from the Sound as far north as the Lennard and Meda Rivers (in the vicinity of the application area) were Warrwa speakers.  Attachment F1 also discusses Tindale’s 1953 field notes, which records a discussion with a Nyikina informant who told Tindale that Warrwa country began at the cutting near Juluwdja on Yeeda Creek, extending along the salt marshes towards Derby. Tindale [name deleted] notes also that they were friendly people in the early days being divided into two groups, the Little Warrwa to south of the river and the Big Warrwa between Derby and Meda Station. (This application area is located within the latter region.)  The report then discusses Tindale’s 1953 genealogies which recorded numerous people as being Warrwa at both Derby and Meda station and the author of the report in attachment F1 opines that it can be inferred from this material that there were two groups of Warrwa people who moved between the focal points of Meda Station and Derby. This, it is claimed, is consistent with accounts from current Warrwa people that Meda Station was a key area for Warrwa people as it had been since the turn of the century. Current Warrwa claimants also assert separate estate groups, presumably along the lines discussed by Tindale, being little Warrwa to the south and big Warrwa between Meda Station and Derby.  The report also refers to Tindale (1974) where he locates the Warrwa further to the east then Elkin andBates being an area described by Tindale as ‘from Frazer River to Round Hill on Stokes Bay and inland to upper Logue River, on Fitzroy River to Yeeda; at Derby and north of Meda extending inland about 40 miles’. Tindale notes that the eastern and western sections of the group were almost cut off by the movement before European settlement of the Nyikena down the Fitzroy River, with contact being maintained along coastal swamps flooded at high tide. The Nyikena called the western side ‘Little Warrwa’ and those between Derby and Meda ‘Big Warrwa’. The author opines that the depictions by Bates and Elkin of the Warrwa only lying west of the Sound may well be explained by this understanding of Warrwa being located in two distinct geographical areas, as discussed by Tindale.  Attachment F2 is an affidavit by Harry Lennard dated 15 September 2010 in which he talks extensively about his Warrwa identity and traditional country. Mr Lennard was born in Derby and his great grandmother is the apical ancestor, [name deleted]. He tells how his foot reminded his grandmother of that belonging to a pivotal Warrwa man, [name deleted] (which

1 At [p. 4].

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 17 Decided: 13 October 2010 I have inferred is a variant spelling for the apical ancestor [name deleted]) and whose traditional name Mr Lennard inherited because of this similarity. This name meant that other Warrwa would know straightaway that Mr Lennard was from Meda— at [3].  Mr Lennard discusses other Warrwa apical ancestors in his affidavit:  [name deleted]— at [5];  [name deleted]— at [5];  [name deleted]— at [8]; and  [name deleted]— at [13].  Mr Lennard tells of growing up on Meda and returning there for holidays after being sent to live at the mission school. He describes learning about this Warrwa heritage from his parents, uncles and grandparents and other Warrwa people. He learnt to hunt with a spear and to make spears and woomera. He learnt to use floodwaters to trap game. He knows all the good billabongs and hunting grounds on Meda Station and also on Kimberley Downs (a pastoral station to the east of Meda Station). He and his family fish along the May River, which I can see from the map in Attachment C traverses the northern section of the application area. He hunts goanna, turkey and emu. He takes his children there now.  Mr Lennard states that Big Warrwa is Meda and Derby and Little Warrwa is towards the western side of the King Sound, near Fraser River— at [7].  Attachment F3 is an affidavit by [name deleted] dated 15 September 2010. It appears that [name deleted] is Harry’s younger sibling. Like Harry, [name deleted] was raised on Meda Station and her affidavit evinces a strong and lifelong attachment to her Warrwa identity and traditional country on Meda Station, including to places which I can see from the map in Attachment C are closely proximate to the application area. She describes learning to collect Koonkuberry, Quall and other bush foods. She saw how to smoke babies at Meda Station from the old Warrwa people. She describes this in great detail and says that they use this as a protective measure today. She says that she feels comfortable in this Warrwa country of hers and doesn’t feel the same in other people’s country. I understand from comments by Dowsett J in Gudjala 2007 that a sufficient factual basis for the assertion in s. 190B(5)(a) needs to address:  That the claim group as a whole presently has an association with the area, although it is not a requirement that all members must have such an association at all times.  That there has been an association between the predecessors of the whole group over the period since sovereignty—at [52]. As I noted at the outset of my reasons for this condition, this analysis of what the factual basis materials must support was not criticised by the Full Court in Gudjala FC— at [69] and also at [96]. I note that the elements discussed by Dowsett J at [52] and referred to by the Full Court at [96], appear to refer to the assertion that there is a cohesive community of people who observe ‘traditional’2 law and custom and who are associated with the application area over the period since sovereignty or European settlement (see Gudjala FC at [96] and Gudjala 2009 at [26]). In my view, the factual basis outlined above addresses the particular requirements of subparagraph 190B(5)(a). The anthropological report in Attachment F1 gives an overview of the

2 The meaning of ‘traditional’, as it appears in s. 223(1)(a), is the subject of the decision in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta HC).

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 18 Decided: 13 October 2010 ethnographic literature for the region which, in my view, provides sufficient facts showing that the application area falls within known Warrwa territory, as at European settlement in the 1880s and as can be inferred to have been the position in 1829 at sovereignty. This account offers a thesis for the divergent accounts of Warrwa territory in the work of Elkin and Bates. It is not for me to disbelieve or criticise this thesis and in any event, it would appear that the ethnographic writings overall support an assertion that the application area is generally within known Warrwa territory. Importantly I have found the information in the affidavits of Harry Lennard and [name deleted] extremely useful; they provide a good context for the anthropological information, talking as they do to the lifelong and strong association of generations of Warrwa people with the application area since the early 20th century. Although not all of the Warrwa apical ancestors are discussed in the affidavits, I am satisfied that the material overall supports the assertion that the group’s predecessors had an association with the application area. I note that both deponents provide information showing a strong assocation by the group and their predecessors to areas that are within or closely proximate to the application area. I refer to the following excerpts from the affidavits: Harry Lennard: [13] My great grandmother [name deleted] was named after that place called blue holes which is on Warrwa country between Point Torment and Meda.

*14+ My Grandfather on my father’s side was called [name deleted] ([name deleted]). He was born in Derby near the Boab Inn. There used to be an old well there. His father was a Malay/Chinese working as a cook and his mother was [name deleted]. After he was born, because he had Asian features his traditional Aboriginal father, [name deleted], took him to a place called Janebid to be killed, he tried to bury him alive. Janebid is on the mainland near Valentine Island. Someone rescured him and [name deleted] then brought him back to Point Torment Station where he grew up with many old Warrwa people and was given the Warrwa name, [name deleted]. He was initiated as Warrwa . . .

[20] When I was ten years old I went with my oldest cousin and father to Sunday Island and my father went through the Bardi Law to respect both sides. But my father followed Warrwa Law because he then lived at Meda where he was initiated first.

[21] I grew up on Meda but when I was seven years old I came to Derby to live at the mission school and used to go went (sic) home during the holidays.

[22] My Rai is One Tree near Butlers Lake called Walgara. When my mother and father were at the stock camp there I bit my brother [name deleted] on the leg as a ngardi spirit when he was a little boy. My mother and father saw the spirit it was like a kangaroo. . .

[28] . . . We know all the good billabongs and hunting grounds on Meda and Kimberley Downs. Our family hunt and fish there through all the different seasons. We fish along the May River. We mainly catch barwulu (catfish) and gnidadung (barramundi) and also judmundga (brim). We also catch jaramba (fresh water prawn).

[29] We hunt Barni (goanna) during the wet season. That place called Bilarn, the old police camp near Mundamah (Poulton’s Pool) on the May River, is good for goanna, turkey and emu. The place along the May River, the crossing point to the old people’s camp at Pultong’s Yard,

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 19 Decided: 13 October 2010 is also a good place for hunting. I helped the old people build the yard there as a kid during my holidays from the mission. I camped and hunted with old [name deleted] (my mum’s older brother) and [name deleted] ([name deleted]) all around that place when I was a child.

[31] I know the Application area really well because I am a traditional owner for that country. We hunt inside that area all year around. . . [name deleted]: [1] . . . I was raised on Meda Staton which is on Warrwa traditional country.

[8] My father went through Warrwa law on Meda Station at the old camp on the other side of the billabong. There are men’s sites on Meda that I know I cannot go. When I used to go out looking for Koonkukberry and I would get close to a place where I was not supposed to go, the old people would call out to me don’t go there that is no good place.

[11] I saw how to smoke babies at Meda Station from the old Warrwa people. We use the Koonkunberry for smoking babies to make them strong, we rub the legs and straighten them to make the babies walk strong. You have to tap the babies on the their hands to that they don’t steal, you tap them on their heads so they know who their family groups are, so they understand who they are and won’t have relationships with the wrong person. We touch them on the mouth so that they don’t swear and say bad things. We were all smoked as children and we use smoking as a protective thing today.

[12] We lived at the homestead at Meda near the Billabong there. The old people used to camp at the other side of the Billabong, there is a little graveyard there today.

[16] When we were kids we learnt how to fish from the Warrwa old people. We used to walk from the Station to the May River. We have different names for places all along the May River. We used to go to Koola, Millarla and Nungilinun (Mary Wells). We would also go way back to Emanuel Yard to Bull camp and further on to Poulton’s Pool (Mundamah). When we went with the old people we used to use frogs for bait, we still use frogs for bait during the floods. Frog is the best bait for barramundi and catfish. We call that green frog gurungool and the sandfrog, Munbook and the catfish baruloo and barramundi is called Walja.

*18+ I feel comfortable in my country, I don’t feel the same way when I am on someone else’s country. I don’t catch many fish when I am on someone else’s country. Some people that come to our country they feel the same.

Having regard to all of this information, I am satisfied that the factual basis provided is sufficient to support the assertion that the native title claim group have and their predecessors had, an association with the area. Section 190B(5)(b)—that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interest The applicant’s factual basis for this assertion is found within the following material in the application:

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 20 Decided: 13 October 2010  Schedule F states that in Warrwa society there exist traditional laws and customs giving rise to the native title rights and interests which vest in members of the native title claim group on the basis of:  ancestral connection to the area,  traditional religious knowledge of and affiliations to and responsibility for the area,  traditional religious knowledge of the area and its resources and  knowledge of traditional ceremonies of the area.  The anthropological report in Attachment F1 examines the historical and ethnographic literature which overall places the application area within the group identified as the Warrwa in the early post-contact period. The report also examines Warrwa traditional laws and customs, including cosmology and traditional beliefs, songs, social organisation and land- holding.  Reference is made to:  Capell (1952) providing information about Warrwa and Nyikina beliefs. The report identifies that the Nyikina are a neighbouring group with a similar language structure.  Keogh (1990) referring to an account by [name deleted] that Nyul Nyul people travelled to Warwa territory on the lower Fitzroy for initiation ceremonies.  Keogh (1990) discussing songs and dances performed by speakers of several related languages in the western Kimberleys—Nyigina, Warrwa, Yawuru, Dyugun, Ngumbari, Dyabirr Dyabirr and Nyul Nyul. The Nurlu is traditionally performed to entertain the community. It is an ‘open’ ceremony and could be performed any time, however, during initiation, when people from a wide area gathered together it was performed in the evenings as an adjunct to the more serious initiation ceremonies. The nurlu series are not fixed and their owners may receive new songs and dances. Over long periods, old ceremonies may fall into disuse as new ones gain popularity and meanings may change over time.  Bates’ discussion of the northern coastal class present amongst a number of groups including the Warnvai (a variant spelling of Warrwa).  Tindale (1953) recorded genealogies of people on Meda Station that identifies and labels people as Warrwa. The report states that these people can be linked to current claimants and provides the example on p. 304 of [name deleted] who was married to [name deleted], who can be clearly traced to the current claim group. I have inferred that this is the apical ancestor [name deleted]. [name deleted] Tindal also recorded kinship terms used by the people living at Meda Station and the report opines that this indicates that the Warrwa were a vibrant society in the 1950s. [name deleted] Tindale’s work dates back to identifying Warrwa persons on Meda station in 1943.  In relation to traditional laws and customs relating to land ownership, the anthropological report in Attachment F1 refers to the evidence of Harry Lennard that his family are associated with the Derby area and are the original family or estate group for this area within the wider Warrwa society. The thesis in the report is that the available literature supports that there are two estate groups – the estate group of Harry’s mother ([name deleted]) in the Meda Station area and the Emana Gnuda estate of Harry Lennard’s father around Derby.  The report in Attachment F1 concludes with these opinions:

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 21 Decided: 13 October 2010  ‘Whilst there has not been specific and detailed ethnographic fieldwork with Warrwa people by previous anthropologists, there are numerous references to the Warrwa people, language, laws and customs in the ethnographic literature.’  ‘There is a strong consistency between the ethnographic record and contemporary depictions of Warrwa traditional lands.’  ‘There are numerous examples of consistency of Warrwa laws and customs as recorded in the literature and the contemporary observations of laws and customs of the Warrwa people.’  ‘There is ongoing connection to the claim area and the exercise of native title rights and interests in the claim area.’ There is significant support for these claimed conclusions in the affidavits by Harry Lennard and [name deleted] (attachments F2 and F3). Both deponents eloquently describe how they have acquired their Warrwa identity from the apical ancestor [name deleted] and other Warrwa apical ancestors including [name deleted], [name deleted], [name deleted] , [name deleted] and [name deleted]. Both deponents tell of living on the country in Meda Station in traditional ways. Harry Lennard tells of his father’s initiation on Meda and his following the Warrwa law. Harry tells of his rai near Butler’s Lake. He has a birth mark that is his Father’s Dreaming. His father taught him to hunt, make spears and woomera, to catch game. He learnt different ways of hunting from his mother. He states that he knows the application area really well because he is a traditional owner of that country. He hunts there all year round and takes his children hunting. He knows the ceremonial grounds and places of his Warrwa people and the traditional route to the Law ground, which his mother travelled as a young girl. His affidavit paints a strong picture of the inter-generational transmission of Warrwa traditional law and custom from numerous apical ancestors identified in the application. The affidavit by [name deleted] paints a similarly strong picture. The language of the assertion in subparagraph (b) nearly mirrors that found in s. 223(1)(a). In my view, I must therefore be satisfied that the factual basis is sufficient to support an assertion that the claimed native title rights and interests find their source in ‘traditional’ laws and customs. The word ‘traditional’ in ss. 223(1)(a) is central to an understanding of whether native title rights and interests exist in relation to an area of land or waters. I understand that the legislature intends that the expression ‘traditional’ in relation to the meaning of native title rights and interests is used uniformly throughout the Act. Accordingly, as was discussed by Dowsett J in Gudjala 2007 at [26], the factual basis provided by an applicant must pay attention to the High Court’s decision in Yorta Yorta and in Full Court decisions since as to what is meant by rights and interests being possessed under traditional laws and customs. This aspect of Dowsett J’s decision was not criticised by the Full Court in Gudjala FC who noted that one question, amongst others, which needs to be addressed in the factual basis materials is whether ‘there was, in 1850–18603, an indigenous society in the area, observing identifiable laws and customs’—at [96]. Having regard to the case law about what it means for native title to be possessed under traditional laws and customs, it is my view that a sufficient factual basis for the assertion in s.

3 This being the relevant time of European settlement of the Gudjala application area.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 22 Decided: 13 October 2010 190B(5)(b) needs to address that the traditional laws and customs giving rise to the claim to native title rights and interests have their origin in a pre-sovereignty normative system with a substantially continuous existence and vitality since sovereignty. I refer to comments by Dowsett J in Gudjala 2007 that the factual basis materials for this assertion must address:  that the laws and customs currently observed have their source in a pre–sovereignty society and have been observed since that time by a continuing society— at [63];  that there existed at the time of European settlement a society of people living according to a system of identifiable laws and customs, having a normative content— at [65], [66] and [81]; and  explains the link between the claim group described in the application and the area covered by the application, which, in the case of a claim group defined using an apical ancestry model, may involve ‘identifying some link between the apical ancestors and any society existing at sovereignty, even if the link arose at a later stage’, although the apical ancestors need not themselves have comprised a society— at [66] and [81]. This aspect of Dowsett J’s decision was not criticised by the Full Court in Gudjala FC —at [71], [72] and [96]. I refer also to these additional comments by Dowsett J in the later Gudjala 2009 decision about the requirements in s. 190B(5)(b):  Identification of an indigenous society at sovereignty is the starting point, as it ‘is impossible to identify a system of laws and customs as such without identifying the society which recognizes and adheres to those laws and customs’— at [36].  There must be some link between the claim group and claim area, including the identification of a link between the apical ancestors and the relevant society, although it is not necessary that it be shown that the ancestors were members of the relevant society— at [40].  Such laws and customs that exist now may not be identical to those that existed prior to sovereignty but must ‘have their roots in the pre-sovereignty laws and customs’— at [22]. It seems that the factual basis needs to identify the relevant indigenous society operating in the application area at the time of sovereignty or, at the very least, the time of contact/settlement. Once identified, it follows that the factual basis must reveal the existence of laws and customs with a normative content that are associated with that society. In other words, the factual basis needs to discuss the relationship between the laws and customs now acknowledged and observed and those which were acknowledged and observed before sovereignty. Having regard to the applicant’s factual basis for this assertion, which I have summarised above, I am satisfied that it is sufficient to support an assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claimed rights and interests. In my view, the affidavit material describes the existence of traditional laws and customs acknowledged and observed by the native title claim group with a strong emphasis on inter- generational transmission of traditional law and custom. The evidence from Harry Lennard and [name deleted] is that they have a strong and abiding connection with their Warrwa identity as the descendants of ancestors named in Schedule A and with the application area which is sourced in their allegiance to and observance of the traditional laws and customs of their ancestors. The

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 23 Decided: 13 October 2010 anthropological report in Attachment F1 overall places the application area within the known traditional country of the Warrwa people, which has been documented since the late 19th century. The work of [name deleted] in the mid-20th century recorded a Warrwa traditional society and importantly, placed this society squarely in the area covered by this application. It follows that I am satisfied that the factual basis is sufficient to support an assertion that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claimed rights and interests. Section 190B(5)(c)— that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs I take the view that the assertion in subparagraph (c) is also referrable to the second element of what is meant by the term ‘traditional laws and customs’ in Yorta Yorta, namely, that the native title claim group have continued to hold their native title rights and interests by acknowledging and observing the traditional laws and customs of a pre-sovereignty society in a substantially uninterrupted way— Yorta Yorta at [47] and also at [87]. Gudjala 2007 indicates that this particular assertion may require the following kinds of information:  that there was a society that existed at sovereignty that observed traditional laws and customs from which the identified existing laws and customs were derived and were traditionally passed to the current claim group; and  that there has been continuity in the observance of traditional law and custom going back to sovereignty or at least European settlement—at [82]. The Full Court in Gudjala FC at [96] appears to agree that the factual basis must identify the existence of an Indigenous society observing identifiable laws and customs at the time of European settlement in the application area. The information in the application, discussed above, identifies that the society at sovereignty was the Warrwa people and that the application area falls within the traditional territory of that pre- sovereignty society. The affidavits provide examples of how the native title claim group have continued to observe and acknowledge traditional laws and customs. Having regard to all of these materials, examples of which I have referred to above, I am of the view that there is a sufficient factual basis for the assertion that the native title claim group has continued to hold the claimed native title by acknowledging and observing the traditional laws and customs. Conclusion To conclude, the application satisfies the condition of s. 190B(5) overall because the factual basis provided is sufficient to support each particular assertion in subparagraphs (a) to (c) of s. 190B(5). 190B(6) Prima facie case The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 24 Decided: 13 October 2010 The application satisfies the condition of s. 190B(6) as I consider that, prima facie, at least some of the claimed native title rights and interests can be established. General Comments I refer to the following comments from Doepel about the nature of the test at s. 190B(6):  It is a prima facie test and ‘if on its face a claim is arguable, whether involving disputed questions of fact or disputed questions of law, it should be accepted on a prima facie basis’— Doepel at [135].  It involves some ‘measure’ and ‘weighing’ of the factual basis and imposes ‘a more onerous test to be applied to the individual rights and interests claimed’—Doepel at [126], [127] and [132]. The native title rights and interests claimed by the applicant have been reproduced in my reasons at s. 190B(4). I note my view above at s. 190B(5) that the applicant has provided a sufficient factual basis to support the assertion that there exist traditional laws and customs acknowledged and observed by the native title claim group that give rise to the claim to native title rights and interests. Exclusive right not prima facie established The applicant has framed its claimed native title rights and interests as a claim in the first instance to the exclusive right to possess, occupy, use and enjoy the lands and waters of application area as against the whole world. The applicant expressly states that this claim is made ‘over areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where s238, ss47, 47A or 47B apply)’. It is my view that this first right is not a right that can be prima facie established over any part of the application area. This is because I have information before me identifying that the application area is covered by the Meda pastoral holding 3114/594, such that any exclusive right of possession would seem to have been extinguished by the grant of the pastoral lease. I note that the applicant states in Schedule L that they claim the benefit of ss. 47, 47A or 47B where possible, however, it does not appear to me that they have set out the basis for such a claim in language that satisfies s. 61A(4), including which particular section is relied upon and the factual matters identified in ss. 47, 47A or 47B. I am of the view therefore that the exclusive right is not prima facie established on the material that is before me. Non-exclusive rights prima facie established The applicant then identifies in paragraph 2 of Schedule E that over areas where a claim to exclusive possession cannot be recognised, the Warrwa People claim a series of rights and interests relating to their access to and use of the application area. I have found many examples in the factual basis materials including the two affidavits by Harry Lennard and [name deleted] in Attachments F2 and F3, which indicate that most of the claimed rights currently exist under the traditional laws and customs of the native title claim group, by which the group access, use and enjoy the area, including by travelling and moving over the area, hunting, fishing, gathering, conducting ceremonial life and maintaining and protecting special sites. The rights and interests I consider to be prima facie established (and references to the information within the application that I have considered) are:

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 25 Decided: 13 October 2010 2. Over areas where a claim to exclusive possession cannot be recognised, the Warrwa People claim the following rights and interests: (a) the right to access the application area; Harry Lennard: [1], [7]–[11], [21] and [22], [31] [name deleted]: [1], [12], [18] to [20] (b) the right to travel across the application area; Harry Lennard: [30] [name deleted]: [8], [13] and [14] (c) the right to camp on the application area; Harry Lennard: [31] [name deleted]: [12] and [21] (d) the right to erect shelters on the application area; Although there is no specific mention of the erection of shelters, both Harry and [name deleted] talk eloquently about camping, hunting and fishing on the application area and travelling across it. They also describe a rich ceremonial life there. I accept that they have the right to erect shelters on the application area. (e) the right to live on the application area; Harry Lennard: [1], [7] to [11], [21], [22] and [31] [name deleted]: [1], [12] and [18] to [20] (f) the right to move about on the application area; Harry Lennard: [30] and [31] [name deleted]: [8] and [13] to [14] (g) the right to hold meetings on the application area; [name deleted]: [31] (h) the right to hunt on the application area; Harry Lennard: [24] to [29] and [31] [name deleted]: [15] (i) the right to fish on the application area; Harry Lennard: [28] [name deleted]: [16] and [17] (j) the right to take fauna from the application area; Harry Lennard: [24] to [29] and [31] [name deleted]: [15] to [17] (k) the right to use and maintain the natural water resources of the application area including the beds and banks of watercourses;

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 26 Decided: 13 October 2010 Harry Lennard: [28] [name deleted]: [16] (l) the right to gather the natural products of the application area (including food, medicinal plants, timber, stone, ochre and resin) according to traditional laws and customs; [name deleted]: [9] and [10] (m) the right to use the application area for social, religious, cultural and spiritual customary and/or traditional purposes; (n) the right to conduct ceremony on the application area; (o) the right to participate in cultural activities on the application area; Harry Lennard: [11], [19] to [22] and [30] [name deleted]: [11] and [19] to [24] (p) the right to maintain places of importance under traditional laws, customs and practices in the application area; (q) the right to protect places of importance under traditional laws, customs and practices in the application area; [name deleted]: [19] to [21] (r) the right to conduct burials on the application area; Harry Lennard: [11] (t) the right to cultivate and harvest native flora according to traditional laws and customs; [name deleted]: [9] and [10] (u) the right to cook and light fires for that purpose, on the application area; (v) the right to light fires for domestic purposes but not for the clearance of vegetation; Harry Lennard: [29] and [31] [name deleted]: [10] and [15] (x) the right to maintain and transmit cultural knowledge of the application area. (y) the right to maintain and transmit cultural knowledge of the application area; Both Harry Lennard and [name deleted] provide cogent information about a rich ceremonial and cultural life in relation to the application area, including around initiation and following the law, being given traditional names and identities on birth, smoking ceremonies for babies, learning how to make weapons in the traditional way and hunting and catching fish in traditional ways. They also describe learning these things from their old people and passing them onto their children. Non-exclusive rights not prima facie established The rights and interests from paragraph 2 of Schedule E that I consider cannot be prima facie established are the following: (s) the right to speak for and make non-exclusive decisions about the application area;

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 27 Decided: 13 October 2010 In my view this right is not capable of being established non-exclusively, on the authority that such a right is ‘subsumed in that global right of exclusive occupation’— Sampi v State of Western Australia [2005] FCA 777 at [1072]. I refer also to the reasoning in Ward HC at [88] that: a core concept of traditional law and custom *is+ the right to be asked permission and to ‘speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to posses, occupy, use and enjoy land to the exclusion of all others. I also note that in Neowarra v State of Western Australia [2003] FCA Sundberg J 1399 was of the view that ‘the right to speak for country involves a claim to ownership’ and could only be recognised in relation to areas of exclusive native title rights and interests —at [494]. I note that in Attorney General of the Northern Territory v Ward [2003] FCAFC 283 (Ward FC), the Court in making a consent decision recognised a similar, but qualified right ‘to make decisions about the use and enjoyment of land by Aboriginal people who will recognise those decisions and observe them pursuant to their traditional laws and customs’ as a non-exclusive right—at [27]. Also in Jango v Northern Territory of Australia [2006] FCA 318 (Jango), Sackville J considered that he was bound by the Full Court in Ward FC and held that a non-exclusive right ‘to make decisions about the use or enjoyment of the Application Area by Aboriginal people who are governed by the traditional laws and customs of the Western Desert bloc’ could be recognised—at [571]. For the reasons outlined above I am not satisfied that the right to speak for and make non- exclusive decisions about the application area can be prima facie established in relation to areas where a right to exclusively possess, occupy, use and enjoy is not claimed. In my view, a particular problem for this right is that it is not framed in such a way that clarifies the content of the right to make non-exclusive decisions, for example, as was considered in Ward FC. (w) the right to uphold, regulate, monitor and enforce customary law; The decision of Neowarra v State of Western Australia [2004] FCA 1092 indicates that this is a right in relation to people and not in relation to land or waters and as such is not capable of being recognised under s. 223. (z) the right to regulate among and resolve disputes among the native title holders of the application area. A similarly framed right was held to be part of the laws and customs of the native title holders rather than a right or interest in relation to land or waters— Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group [2005] FCAFC 135 at [165], and as such is not capable of being recognised under s. 223.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 28 Decided: 13 October 2010 190B(7) Traditional physical connection The Registrar must be satisfied that at least one member of the native title claim group: (a) currently has or previously had a traditional physical connection with any part of the land or waters covered by the application, or (b) previously had and would reasonably be expected to currently have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to the land or waters) by: (i) the Crown in any capacity, or (ii) a statutory authority of the Crown in any capacity, or (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease. The application satisfies the condition of s. 190B(7). I understand the phrase ‘traditional physical connection’ to mean a physical connection in accordance with the particular traditional laws and customs relevant to the claim group, being traditional as discussed in Yorta Yorta. I note also that [29.19] of the explanatory memorandum to the Native Title Amendment Act 1998 indicates that parliament intended that the connection described in s. 190B(7) ‘must amount to more than a transitory access or intermittent non-native title access’. I refer to the affidavits by Harry Lennard and [name deleted]. I am satisfied that both these persons are members of the native title claim group, via descent from ancestors named in Schedule A. Both deponents provide strong evidence of their traditional physical connection to the application area and to their acknowledgement and observance of the traditional laws and customs of the Warrwa People. I refer to my reasons at ss. 190B(5) and 190B(6) for references to this material. I am satisfied that they currently have a traditional physical connection with the land or waters covered by the application. 190B(8) No failure to comply with s. 61A The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that because of s.61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made. Section 61A contains four subsections. The first of these, s. 61A(1), stands alone. However, ss. 61A(2) and (3) are each limited by the application of s. 61(4). Therefore, I consider s. 61A(1) first, then s. 61A(2) together with (4), and then s. 61A(3) also together with s. 61A(4). I come to a combined result below. No approved determination of native title: s. 61A(1) Section 61A(1) provides that a native title determination application must not be made in relation to an area for which there is an approved determination of native title. The application meets the requirement under s. 61A(1). There are no approved determinations of native title over the application area. No previous exclusive possession acts (PEPAs): ss. 61A(2) and (4)

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 29 Decided: 13 October 2010 Under s. 61A(2), the application must not cover any area in relation to which (a) a previous exclusive possession act (see s. 23B)) was done; (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23E in relation to the act. Under s. 61A(4), s. 61A(2) does not apply if: (a) the only previous exclusive possession act was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made, and (b) the application states that ss. 47, 47A or 47, as the case may be, applies to it. The application meets the requirement under s. 61A(2), as limited by s. 61A(4). Any areas over which there is a PEPA and in respect of which ss. 47, 47A or 47B do not allow extinguishment to be disregarded, have been excluded from the application area: see Schedule B. No exclusive native title claimed where previous non-exclusive possession acts (PNEPAs): ss. 61A(3) and (4) Under s. 61A(3), the application must not claim native title rights and interests that confer possession, occupation, use and enjoyment to the exclusion of all others in an area where: (a) a previous non-exclusive possession act (see s. 23F) was done, and (b) either: (i) the act was an act attributable to the Commonwealth, or (ii) the act was attributable to a state or territory and a law of the state or territory has made provisions as mentioned in s. 23I in relation to the act. The application meets the requirement under s. 61A(3), as limited by s. 61A(4). Schedule E is clearly drafted such that any claim exclusive possession, occupation, use and enjoyment is only made over areas where there has been no extinguishment or where any extinguishment is to be disregarded because of ss. 47, 47A or 47B (refer to my reasons for s. 190B(4) above). The application satisfies the condition of s. 190B(8), because it meets the requirements of s. 61A, as set out in the reasons above. 190B(9) No extinguishment etc. of claimed native title The application and accompanying documents must not disclose, and the Registrar/delegate must not otherwise be aware, that: (a) a claim is being made to the ownership of minerals, petroleum or gas wholly owned by the Crown in the right of the Commonwealth, a state or territory, or (b) the native title rights and interests claimed purport to exclude all other rights and interests in relation to offshore waters in the whole or part of any offshore place covered by the application, or (c) in any case, the native title rights and interests claimed have otherwise been extinguished, except to the extent that the extinguishment is required to be disregarded under ss. 47, 47A or 47B.

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 30 Decided: 13 October 2010 The application satisfies the subcondition of s. 190B(9)(a). Schedule Q states that the application does not make any claim for ownership of minerals, petroleum or gas wholly owned by the Crown and the native title rights and interests claimed in Schedule E similarly do not reveal any such claim. The application satisfies the subcondition of s. 190B(9)(b). The application does not extend to offshore places. The application satisfies the subcondition of s. 190B(9)(c). Paragraph 2(e) of Schedule B identifies that the application excludes land or waters where the native title rights and interests have been otherwise extinguished. [End of reasons]

Reasons for decision: Warrwa People WAD262/2010 (WC10/12) Page 31 Decided: 13 October 2010